Guardianship & supported decision making

At the age of 18, all individuals, including those with intellectual and developmental disabilities, reach the legal age of majority. This means that a parent is no longer able to make legal decisions on behalf of their loved one once her or she turns 18. If your loved one is unable to make legal decisions, or needs support in making major decisions, you should learn more about guardianship and supported decision making. Families should weigh each option carefully and choose the least restrictive option for their loved one. 

Consult an attorney for the most in-depth and accurate information

Guardianship and conservatorship are best explained and represented by an attorney. This section is informative in nature and is not considered legal advice. 

What is guardianship?

Guardianship is a legal proceeding that takes legal rights away from an individual, including the right to vote, determining where a person will live and receive education, ability to enter into contracts and more.  Guardianship can be full or limited. 

Full guardianship:

The guardian is granted the ability to make all decisions for the individual

Limited guardianship:

Limited guardianship allows the courts to place limitations on the guardian's authority to make decisions for the individual. 

Does my loved one need guardianship?

The attorneys at Hale & Ball PLC have  created a helpful checklist that can help you determine if your loved one is in need of guardianship services. You can download it by clicking the image to the right. 

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Can anyone be a guardian?

Yes. A guardian does not need to be an immediate family member or a member of the family. At times, a public guardian may be appointed. Co-guardians may also be appointed to work together in the best interest of the individual. 

How can I start the guardianship process?

  1. Contact an attorney. There are many avenues in the guardianship process that require extensive legal knowledge. An attorney will be able to assist you in determining the level of guardianship, if any, that your loved one may need. Guardianship IS NOT a free process and fees will be determined by individual attorneys and firms.  You should begin the guardianship process at least six months before your loved one turns 18.

  2. Attorney will file a petition for the appointment of a guardian or conservetor in the Circuit Court in the city or county in which your loved one resides. 

  3. A guardian ad litem will be appointed for your loved one. This person is an attorney who represents the best interests of your loved one. The fee for the guardian ad litem is paid by the person who files the petition for guardianship. 

  4. Your loved one will be served with legal papers by your local sheriff's department, known as the Requirement of Notice, that a hearing where they may lose their rights will occur. Your loved ones's rights will be outlined in the Requirement of Notice.

  5. A hearing will be set. During the hearing , the court will hear evidence from your attorney and your loved one's guardian ad litem. If the court determines there is enough evidence that your loved one needs a guardian appointed, the court will issue an order outlining the parameters of guardianship.

  6. For an in depth guide on guardianship & conservatorship, click the image to the right and download the resource. 

Source: Hale & Ball PLC

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What if my loved one doesn't need guardianship? What other options are there?

Your loved one may be best assisted by supported-decision making. Supported-decision making is a recognized alternative to guardianship, where your loved one receives supports from friends, family, professionals and other trusted individuals to make the best decisions for themselves. With supported decision making, your loved one retains his or her rights, but receives added support in making life decisions. 

Resources on supported decision making

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© 2023 by The Arc of Northern Shenandoah Valley. 

Tel: 540-692-9650

Email: shenvalleyarc@gmail.com

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